Daniel Larsen v. Derral Adam

Filing

FILED OPINION (WILLIAM C. CANBY, STEPHEN R. REINHARDT and KIM MCLANE WARDLAW) AFFIRMED. Judge: WCC , Judge: SR , Judge: KMW Authoring. FILED AND ENTERED JUDGMENT. [8782829]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANIEL LARSEN,
Petitioner-Appellee,

No. 10-56118

v.

D.C. No.
2:08-cv-04610-CAS-SS

JOHN SOTO,
Respondent-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
July 30, 2013—Pasadena, California
Filed September 16, 2013
Before: William C. Canby, Jr., Stephen Reinhardt,
and Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw

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SUMMARY*

Habeas Corpus
The panel affirmed the district court’s denial of a
warden’s motion to dismiss a facially untimely 28 U.S.C.
§ 2254 habeas corpus petition based on a showing of actual
innocence.
After concluding that remand for consideration of the
Supreme Court’s recent decision in McQuiggin v. Perkins,
133 S. Ct. 1924 (2013), was unnecessary because the district
court already undertook the analysis that Perkins prescribes,
and after rejecting the warden’s arguments regarding the
credibility of petitioner’s evidence, the panel held that
petitioner satisfied the demanding standard of producing
proof of innocence sufficient to undermine a court’s
confidence in his conviction.

COUNSEL
Stephanie C. Brenan (argued), Deputy Attorney General;
Xiomara Costello, Supervising Deputy Attorney General;
Dane R. Gillette, Chief Assistant Attorney General; Kamala
D. Harris, Attorney General; Michael R. Johnsen,
Supervising Deputy Attorney General; Richard S.
Moskowitz, Deputy Attorney General; and Lance E. Winters,
Senior Assistant Attorney General, Los Angeles, California,
for Respondent-Appellant.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Jan Stiglitz (argued), Alissa Bjerkhoel, Justin Brooks, and
Alexander Simpson, California Innocence Project, San Diego,
California, for Petitioner-Appellee.
Benjamin G. Damstedt and Lori R. Mason, Cooley LLP, Palo
Alto, California; Scott A. Cole, Cooley LLP, Reston,
Virginia, for Amicus Curiae.

OPINION
WARDLAW, Circuit Judge:
Warden John Soto appeals the denial of his motion to
dismiss Daniel Larsen’s petition for a writ of habeas corpus.
The district court held that Larsen’s claims could be
considered on the merits despite the facial untimeliness of his
petition, on the ground that Larsen presented compelling
evidence that he is actually innocent. Notwithstanding the
one-year limitations period imposed on the filing of federal
habeas petitions by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), see 28 U.S.C. § 2244(d), a
habeas petitioner who convincingly demonstrates that he is
innocent is entitled to present his claims for relief in federal
court. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
We conclude that Larsen has made the requisite showing of
innocence, and we affirm.
I.
A.
On the night of June 6, 1998, Los Angeles police
responded to a report of an assault with a deadly weapon with

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shots fired at the Gold Apple bar1 in Los Angeles’s San
Fernando Valley. The suspect was identified as a man
wearing a green flannel shirt and his hair in a ponytail.
LAPD Officers Michael Rex and Thomas Townsend
responded to the scene. According to the officers, they
approached the bar with their headlights and sirens turned off
to avoid alerting any possible suspects of their arrival. They
approached the bar through a back driveway and turned on
overhead floodlamps, side spotlights, and high beams.
Officer Townsend would later testify (at Larsen’s 1999
trial) that he and Officer Rex quickly noticed a man in the
bar’s parking lot who matched the earlier description of the
suspect. Both officers would testify that the man pulled a
linear object, about five or six inches long, from his
waistband and threw it underneath a nearby car, and that this
man, who wore a green flannel shirt, was Daniel Larsen.
That night, after seeing the man in the parking lot, the
officers ordered everyone in the parking lot to get down on
their knees with their hands on their heads and detained a
number of them in handcuffs. They placed Larsen in the back
of a police car, and Officer Townsend then set out to search
for the object that he testified Larsen had thrown. Officer
Townsend found a double-edged knife with a weighted
handle and a finger guard underneath a pickup truck. He also
found a copper cylinder ten to thirty feet from where Larsen
had been standing, but in the opposite direction from where
he said he had seen Larsen throw the object. Officer Rex also
testified that the object Larsen threw was noticeably bigger

1

Various parts of the record refer to both the “Gold Apple” and “Golden
Apple.” We use the former appellation throughout this opinion for
consistency.

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than the copper bar. Larsen was arrested at the scene. When
Rex asked for his name, Larsen falsely replied that his name
was “Anthony Vant.”
Larsen was charged with possession of a deadly weapon
under former California Penal Code § 12020(a) and convicted
after a jury trial.2 The prosecution chose to charge the
offense as a felony. Because Larsen had several prior felony
convictions, he was sentenced to twenty-eight years to life
imprisonment under California’s Three Strikes Law. The
California Court of Appeal affirmed Larsen’s conviction on
direct review on June 1, 2000, and the California Supreme
Court denied review on August 9, 2000.
B.
In May 2005, Larsen filed a habeas petition in Los
Angeles County Superior Court. He argued that he had
received ineffective assistance of counsel at his trial because
his defense attorney, who has since been disbarred, failed to
conduct an adequate investigation of his case, did not call
several potentially exculpatory witnesses, failed to request
that the knife be examined for fingerprints, and did not
present a theory of third-party culpability.

2

California’s Deadly Weapons Recodification Act of 2010 recodified
the penal statutes relating to the control of deadly weapons without
substantive change. See Cal. Penal Code § 16005. The specific provision
under which Larsen was charged is now codified at California Penal Code
§ 21310, which provides that “any person in this state who carries
concealed upon the person any dirk or dagger is punishable by
imprisonment in a county jail not exceeding one year or imprisonment
pursuant to subdivision (h) of Section 1170.”

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Larsen attached thirteen exhibits to his petition, including
several declarations from individuals who witnessed the
events at the bar who declared that Larsen was not the
individual who threw the knife. For example, Larsen
submitted a declaration from James McNutt, a retired Army
Sergeant First Class and former police chief. Mr. McNutt
declared that he was in the parking lot of the bar with his wife
on the night in question. There, he saw “a man nicknamed
‘Bunker’” arguing with Mr. McNutt’s stepson, Daniel
Harrison. When the police began to arrive, Mr. McNutt “saw
Bunker reach into the waistband of his pants. He took
something out that looked like a knife. He threw it under a
car that was parked to the left of my son’s car.” Mr. McNutt
saw another man, who he later learned was Larsen, being
detained and “wondered why he had been arrested.” Mr.
McNutt’s wife, Elinore, who accompanied him that night,
also declared that she “observed Bunker reach into the
waistband of his pants and remove and throw a shiny object.
He threw it under a car that was parked to the left of my son’s
car.” She specifically declared that “Daniel Larsen had
nothing in his hands, nor had he made any movements at this
time.” Both McNutts stated that they did not believe Larsen
did anything on the night in question that warranted his arrest.
They had moved to North Carolina and did not know that
Larsen had been tried or convicted for any crime.
Larsen submitted another declaration from Jorji Owen,
the girlfriend of a man named William Hewitt, also known as
“Bunker.” She declared that after the incident at the Gold
Apple bar, “Hewitt told me that Larsen had been arrested for
possession of his (Hewitt’s) knife, and that he (Hewitt) had
tossed the knife under a truck when the police arrived at the
bar.” According to Owen, Hewitt sold his motorcycle to bail
Larsen out of jail “because the knife belonged to him, he was

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the individual who had thrown the knife when the police
arrived, and he felt responsible for Larsen being in jail.”
Larsen also submitted a declaration from Hewitt himself,
which stated: “I know that the knife was not [Larsen’s],
because it was mine.” Hewitt stated that he “did not testify
in the trial in which Daniel Larsen was convicted, because no
one subpoenaed me.”
Larsen raised similar claims in habeas petitions before the
California Court of Appeal in March 2006 and before the
California Supreme Court in May 2006. All three courts
denied relief.
C.
Larsen filed his federal habeas petition on July 15, 2008,
and filed the operative First Amended Petition on October 27,
2008. His sole claim for relief is that his trial counsel was
unconstitutionally ineffective because he failed to locate,
investigate, and present exculpatory witnesses or to present
a third-party culpability theory to the jury.
AEDPA generally imposes a one-year period of
limitations on a federal habeas petition, commencing on the
date when the challenged conviction becomes final.
28 U.S.C. § 2244(d)(1)(A). It is undisputed that Larsen’s
federal petition was filed in 2008, well over a year after his
1999 conviction became final. See Bowen v. Roe, 188 F.3d
1157, 1159 (9th Cir. 1999) (noting that a state court criminal
judgment is “final” for purposes of collateral attack at the
conclusion of review in the United States Supreme Court or
when the time for seeking certiorari review expires).
Although the one-year limitation period is tolled during the
pendency of a proper state habeas petition, see 28 U.S.C.

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§ 2244(d)(2), Larsen did not file his state petition until May
18, 2005. We have held “that section 2244(d) does not
permit the reinitiation of the limitations period that has ended
before the state petition was filed.” Ferguson v. Palmateer,
321 F.3d 820, 823 (9th Cir. 2003). Thus, it is clear that
Larsen’s petition is facially untimely under § 2244(d).
However, the Supreme Court has long recognized that in
a “narrow class of cases . . . implicating a fundamental
miscarriage of justice,” Schlup v. Delo, 513 U.S. 298, 314–15
(1995) (quoting McCleskey v. Zant, 499 U.S. 467, 494
(1991)), federal courts may hear the merits of a habeas
petition despite an otherwise applicable procedural bar.
Larsen contends, and the district court concluded, that his
ineffective-assistance-of-counsel claim should be considered
on the merits despite its untimeliness because he is innocent.
“[P]risoners asserting innocence as a gateway to defaulted
claims must establish that, in light of new evidence, ‘it is
more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.’” House
v. Bell, 547 U.S. 518, 536–37 (2006) (quoting Schlup,
513 U.S. at 327). If Larsen satisfies this demanding standard,
then he is entitled to have his federal claim heard on the
merits notwithstanding the statute of limitations prescribed by
§ 2244(d). Perkins, 133 S. Ct. at 1932.3

3

The Warden initially argued that the innocence exception recognized
in Schlup was not available to excuse the untimeliness of a federal habeas
petition under § 2244(d). However, in Perkins the Supreme Court held,
as we had previously concluded in Lee v. Lampert, 653 F.3d 929, 932
(9th Cir. 2011) (en banc), that Schlup’s innocence exception to ordinary
rules of procedural default is applicable “when the impediment is
AEDPA’s statute of limitations.” 133 S. Ct. at 1932. Thus, the Warden’s
argument that no such exception to the statute of limitations exists is
foreclosed.

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D.
Magistrate Judge Suzanne H. Segal held two evidentiary
hearings related to Larsen’s petition, on May 19 and
November 17, 2009. The first hearing concerned the State’s
motion to dismiss the petition, and thus focused solely on
whether Larsen could make the showing of factual innocence
required to excuse the time bar to consideration of the merits
of his petition. Larsen called three witnesses at the
evidentiary hearing: James McNutt, Elinor McNutt, and Brian
McCracken. He also submitted declarations from Jorji Owen
and William Hewitt that he had submitted with his state
habeas petition. See supra p. 6.
James McNutt testified that he is a 22-year veteran of the
military and a former police officer. At the time of the
hearing, he was a correctional officer in Tennessee. He
testified that he was present in the parking lot of the Gold
Apple on the night Larsen was arrested. He and his wife
were meeting his stepson, Danny; he estimated they arrived
at 7:30, though he was “not positive of the time.” After his
wife heard “a loud noise down where Danny’s car was
parked, some arguing going on,” Mr. McNutt went to
investigate the situation. Danny was arguing with a man
whom he repeatedly referred to as “Bunker,” and Bunker was
“doing all the talking.” Larsen was also present, but was not
participating in the argument.
Within about two minutes, Mr. McNutt observed
“approximately 20, 25 LAPD that were coming from all
different directions.” McNutt saw Bunker throw a metallic
object underneath a nearby vehicle; he stated that “from [his]
professional experience” the object likely was not a gun, and
he assumed it was a knife based on “the way it sounded

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underneath the vehicle.” In contrast to Bunker, Larsen
“didn’t say one word . . . . His hands were at the side the
whole time, and he was just standing there, listening.”
Subsequently, a police officer handcuffed and frisked
McNutt, “massaging” his penis for about five or six seconds
in the process. When the officers realized that McNutt was
affiliated with law enforcement, they released him.
Mr. McNutt witnessed Larsen’s arrest. However, it was
not until two and a half years later4 that an attorney contacted
him about providing testimony on Larsen’s behalf. Mr.
McNutt would have testified on Larsen’s behalf, but the
attorney never provided a specific time or place to go to give
his testimony. If he had been called to testify at Larsen’s
trial, his testimony would have been consistent with his
statements at the evidentiary hearing.
On cross-examination, Mr. McNutt testified that he did
not notice any flood lights or hear a helicopter during the
events in the parking lot. He never actually made it into the
bar that night, and all the events he witnessed occurred
around 7:30p.m., though he was “not sure of the exact time.”
When asked, he specifically stated that a copper weight
would not have made the sound he heard when Bunker threw
the object. He also stated that he “was a nervous wreck, all
these police officers and shotguns and everything,” and that
he felt the officers were rude and rough.

4
The record reflects that around this time, Larsen was attempting to
obtain representation to challenge his conviction. Though he had some
false starts with various attorneys who it appeared might take his case, it
was not until after the California Innocence Project began representing
Larsen in 2002 that he pursued habeas relief.

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Elinore McNutt began her testimony by recounting that
she had had several back surgeries and suffered from
neuropathy, diabetes, and fibromyalgia; she indicated that
these conditions would make it difficult for her to sit for a
long period of time. She went with her husband to the Gold
Apple bar on the night in question to meet her son, but she
could not remember what time they went. She “saw a couple
of guys walking right up to [her] son’s car, kind of in a
hurry,” and she recognized one of them as a man known by
the nickname Bunker. Larsen was also present. Because it
appeared that “something [was] going on,” her husband
walked over to where the confrontation was taking place
while Mrs. McNutt waited at the tailgate of her truck. Bunker
exchanged words with her son while Larsen stood by silently.
Within three or four minutes, the police arrived. When the
police began to approach, Bunker “reached in his pants
pocket or shirt and tossed a knife under [a] car”5 near where
he was standing. Meanwhile, Larsen “just stood there, kind
of, dumbfounded. Then turned and walked away.” She
testified that she could see him well and that she did not see
anything in his hands.
Although she saw Larsen being placed in a patrol car,
Mrs. McNutt did not make inquiries because the officers were
busy and “were telling people to leave.” Had she known that
the officers were arresting Larsen for throwing the object
under the car, she would have corrected their mistake.
However, the officers did not take a statement from her. She
would have been willing to testify in Larsen’s defense at trial
had she been asked to do so.

5

Mrs. McNutt then corrected herself, stating: “I don’t know if it was a
knife. I’m just hearing something hit through – a metal, clank, skidding,
you know, noise, but I don’t know what it was.”

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On cross-examination, Mrs. McNutt clarified that it was
just beginning to get dark when she arrived at the bar;
because it was June, she estimated that would have been
around 8:00. She thought that they had gone into the bar for
one or two drinks after the police left, though she “[couldn’t]
be positive that far, long ago”; in any event, she did not
“think [they] were there a long time, because [her] husband
was, pretty, you know, upset.” She recalled the parking lot
being lit by street lights, but did not recall any flood lights
from police cars or the presence of any helicopters. She also
saw that her husband was “fondled” by a police officer, and
could not believe what was happening. She stated that an
officer grabbed her by the hair, but she did not complain
through any official channels because “it doesn’t do a lot of
good to call LAPD, from what I heard.” She also testified
that her eyes were not on Bunker or Larsen for the entire
incident, because she “scanned” the area to see everything
that was going on.
Finally, Larsen called Brian McCracken to testify.
McCracken began by revealing that he was convicted of
conspiracy in 1990 and then in 1998 for being a felon in
possession of a firearm. He has not been arrested since 2001,
and at the time of the hearing was employed making aircraft
components. McCracken was alone at the Gold Apple bar on
the night in question. He knows Daniel Larsen, who was also
at the bar that night. He recounted that a man other than
Larsen approached him in the bar; they exchanged words, and
the man “flashed a knife.” The man said, “You know, I could
kill you right now.” McCracken described the knife as
double-edged and about four to five inches long. It had
“something that could have come over your thumb and index
finger”–“a hand protector.” He was then shown a photograph
of a knife that was found in Larsen’s trial counsel’s file, and

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testified that it “looks pretty similar” to the knife he saw at
the bar. He never saw Daniel Larsen with a knife that
evening. Though McCracken and the man with the knife
resolved their dispute without an altercation, the bartender
informed McCracken that she had called the police. He was
not in the parking lot when Larsen was arrested. McCracken
testified that Larsen later called him from jail, and he told
Larsen, “I know you didn’t have the knife that night. Have
your lawyer get a hold of me.”
On cross-examination, when asked what the man with the
knife looked like, McCracken stated that he was short with
brown hair and a medium build. After McCracken stated that
he could not remember certain details about the man’s
appearance because ten years had elapsed, he was asked
whether “it would be hard to also remember what the knife
looked like”; he responded, “No, I remember the blade
distinctly because when somebody says, you know: I could
kill you right now, and then they show you something, that
one particular moment just stuck in my mind.” He had
known Larsen for about fifteen years, but they were not close
friends. Larsen presumably called him from jail only because
Larsen was aware that McCracken would have known that
Larsen did not have the knife on the night of the arrest. He
admitted that he had not seen anyone in the parking lot throw
an object and was not present when the police arrived.
McCracken thought he may have had one beer before seeing
the knife, and had drunk one or two beers total that night. He
waited to leave the bar until he was certain the police had left,
and ultimately left around 9:30.
Based on the evidence before her, Magistrate Judge Segal
recommended that the district court deny the Warden’s
motion to dismiss Larsen’s habeas petition as untimely. She

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concluded that, in light of the evidence Larsen presented, “no
reasonable juror would have found Petitioner guilty beyond
a reasonable doubt.” The district court adopted that
recommendation.
Magistrate Judge Segal then held a second evidentiary
hearing on Larsen’s ineffective assistance of counsel claim.
Finding that Larsen “clearly received ineffective assistance of
counsel” because his trial counsel failed to present any
evidence in Larsen’s defense, she recommended that the
district court grant the First Amended Petition and order the
Warden to release Larsen or retry him within ninety days.
Over the State’s objections, the district court granted the First
Amended Petition, remanding Larsen’s case for a new trial in
state court within ninety days, unless the state decided not to
retry him. The Warden appealed.
II.
We review de novo the district court’s decision to grant
or deny a petition for a writ of habeas corpus. Lambert v.
Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). “Factual
findings and credibility determinations made by the district
court in the context of granting or denying the petition are
reviewed for clear error.” Id.6

6

We reject the Warden’s suggestion that we should somehow review the
district court’s credibility determinations de novo. While it is true that the
question whether Larsen has satisfied the Schlup standard is a legal
question that we review de novo, that is a distinct inquiry from the
question whether the witnesses testified credibly to facts within their
knowledge. The district court is entitled to deference on the latter point.
See Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). The
district court determined “that the McNutts were credible and persuasive
witnesses” and that “McCracken also gave credible testimony.” The

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The Warden does not appeal the district court’s grant of
relief on the merits of Larsen’s ineffective assistance claim.
Nor does he pursue a claim that the evidentiary hearings held
before Magistrate Judge Segal were improper under Cullen v.
Pinholster, 131 S. Ct. 1388 (2011). The Warden has
therefore waived those issues. See Trest v. Cain, 522 U.S. 87,
89 (1997) (observing that a State can waive non-jurisdictional
defenses in habeas proceedings). Thus, the only issue before
us is whether the district court properly denied the Warden’s
motion to dismiss Larsen’s petition as beyond AEDPA’s
limitation period.
III.
A.
As an initial matter, we must determine the effect, if any,
of the Supreme Court’s recent decision in Perkins on
Larsen’s appeal. The Court held that “actual innocence, if
proved, serves as a gateway through which a petitioner may
pass” to present otherwise time-barred claims in federal court.
133 S. Ct. at 1928. The Court also “clarifie[d] that a federal
habeas court, faced with an actual-innocence gateway claim,
should count unjustifiable delay on a habeas petitioner’s part,
not as an absolute barrier to relief, but as a factor in
determining whether actual innocence has been reliably
shown.” Id. Seizing on this language, the Warden urges us
to remand to the district court for reconsideration of Larsen’s
claim in light of Perkins. He argues that, because it did not
have the benefit of the Court’s ruling at the time it considered
Larsen’s petition, the district court ran afoul of Perkins by
Warden provides no reason to conclude that these determinations were
clearly erroneous, and thus we leave them undisturbed.

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considering Larsen’s diligence “discretely” and not as a factor
going to the credibility of his new evidence. Cf. id. at 1936.
We are not persuaded that remand is necessary. Were the
district court’s reasoning tainted by legal error that prevented
it from properly analyzing the question before it, remand
would be proper. See Johnson v. Bay Area Rapid Transit
Dist., — F.3d —, 2013 WL 3888840 at *10 (9th Cir. July 30,
2013). But that is not the case here. Rather, the Report and
Recommendation approved by the district court expressly
analyzed whether Larsen’s delay in filing his federal habeas
petition undermined the credibility of his new evidence, and
concluded that it did not. The Magistrate Judge rejected the
Warden’s argument that Larsen’s actual innocence claim was
not credible because “no petitioner who is actually innocent
would choose to remain silent about his federal habeas claims
for more than a year.” Even without the benefit of Perkins,
the Magistrate Judge recognized that a belated assertion of
innocence, coupled with new evidence, could undermine an
actual innocence claim. However, she rejected that argument
in Larsen’s case because he “did not remain silent about his
innocence.” The Magistrate Judge found:
At trial, [Larsen] pled not guilty. In his
declaration in support of his Petition, [Larsen]
stated that he asked his trial attorney to
present exculpatory evidence from Hewitt,
Owen, and others. When [Larsen] became
aware of the McNutts’ exculpatory testimony,
he asked his trial attorney to move for a new
trial and unequivocally stated, “I’m innocent.”
[Larsen] continued to assert his innocence
after his conviction. Between his conviction

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in 1999 and the start of the California
Innocence Project’s representation in 2002,
[Larsen] contacted nine different attorneys or
legal organizations for assistance in proving
his innocence.
The Magistrate Judge also evaluated the witness testimony
supporting Larsen’s evidence and found it credible:
Not only has [Larsen] consistently proclaimed
his own innocence, but Petitioner’s supporting
witnesses have as well. The McNutts, who
appear to have no other connection with
[Larsen], have testified credibly to [Larsen]’s
innocence for approximately eight years. In
statements made informally, under oath in a
declaration, and under oath in live testimony
before the Court, the McNutts have
maintained a consistent version of events.
The district court considered this reasoning and adopted the
Magistrate Judge’s conclusion that:
This appears to be one of the “extraordinary
cases where the petitioner asserts his
innocence and establishes that the court
cannot have confidence in the contrary finding
of guilt.” Johnson[ v. Knowles], 541 F.3d
[933,] 937 [(9th Cir. 2008)].
Contrary to the Warden’s argument, the analysis in the
Report and Recommendation demonstrates that diligence was
not considered “only discretely.” The Magistrate Judge made
findings upon which she and the district court concluded that

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Larsen’s delay in filing did not show that his evidence was
unreliable, but was rather explained by his defense attorney’s
failures and his subsequent attempts to acquire appropriate
legal representation. The Magistrate Judge then concluded
that Larsen’s evidence was reliable because it has remained
substantively consistent for over a decade. This is perfectly
consistent with the Court’s teaching in Perkins that
“[u]nexplained delay in presenting new evidence bears on the
determination whether the petitioner has made the requisite
showing.” 133 S. Ct. at 1935 (emphasis added). In short, it
is simply implausible that Perkins would alter the district
court’s conclusions about the credibility of Larsen’s evidence,
because the district court already undertook the precise
analysis that Perkins prescribes.
B.
Alternatively, the Warden urges us to independently
conclude, on the basis of Perkins, that Larsen’s delay in filing
a federal habeas petition diminishes the credibility of his
“new” evidence. He contends that Larsen has failed to
explain why he delayed from his conviction in 1999 until his
first state habeas petition in 2005 to present his new evidence.
We disagree.
First, the evidence is not really new. As discussed supra,
Larsen’s federal habeas petition was the culmination of his
unbroken efforts over many years to prove his innocence
using evidence he knew could exonerate him but which his
attorney incompetently failed to present at trial. Second, the
Warden stretches the record by claiming that, by 1999 or
2000, Larsen had all the information he needed (and all the
legal assistance required) to collaterally attack his conviction
on the basis of actual innocence. The Warden notes that

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Larsen averred in a declaration submitted to the California
Supreme Court that he was aware of the McNutts “after [his]
conviction but before [he] was sentenced.” He also points out
that in his First Amended Petition in federal court, Larsen
stated that the McNutts gave a written statement to Larsen’s
girlfriend “dated September 21, 2001.” Further, the Warden
notes that Larsen declared before the California Supreme
Court that he “had engaged a civil attorney . . . to help [him]
prove [his] innocence” as of September 2000, and that the
civil attorney helped him find another attorney named Charles
Linder to “write [his] habeas petition.” Given Larsen’s
awareness of exculpatory witnesses and the fact that he had
the assistance of counsel during the relevant period, the
Warden contends that Larsen should have presented his
evidence of innocence earlier than 2005 and has not
explained his failure to do so.
This argument is unavailing. First, as the Warden
acknowledges, Linder only agreed to prepare Larsen’s habeas
petition “in exchange for five percent of the proceeds of [his]
civil case” against the State, and then abandoned him after “a
California Supreme Court case came down that made it
impossible for us to win a civil suit until after [Larsen’s]
innocence was proven in an evidentiary hearing.” Thus, it is
extremely misleading for the Warden to suggest the record
shows Larsen “had counsel helping him to prove his
innocence as early as 2000” because of his retention of
Linder. Second, as the Magistrate Judge found, Larsen
contacted numerous legal organizations between 1999 and the
start of the California Innocence Project’s representation in
2002. That it took Larsen several years to find attorneys to
properly develop and present his claims does not undermine
the credibility of his evidence.

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Next, the Warden argues that Larsen has not explained
why it took the California Innocence Project three years from
2002 (when it began representing him) until 2005 to file his
habeas petition. The Warden suggests that Larsen’s “timing
is all the more suspect because he waited to present his
evidence of a third-party perpetrator . . . until after the statute
of limitations expired for prosecuting that person for carrying
a concealed weapon.” These arguments are likewise
unpersuasive. First, it is inexplicable that Larsen would have
willingly allowed the limitations period on his own habeas
petition to expire while he remained incarcerated in order to
spare William Hewitt from charges of carrying a concealed
weapon, and the Warden does not even attempt to offer an
explanation. When Larsen filed his state petition in 2005, Lee
and Perkins had not been decided, so a choice to delay filing
the petition carried the strong likelihood that federal law
could have developed to bar untimely filings notwithstanding
a credible claim of actual innocence. Furthermore, three
years to locate witnesses scattered across the country, gather
declarations, and file Larsen’s petition is not so lengthy a
time as to be unreasonable. Certainly, that his attorneys were
thorough in preparing his petition does not undermine the
reliability of Larsen’s evidence. And at any rate, the Warden
has not explained why the California Innocence Project
would choose to become complicit in Larsen’s supposed
scheme to spare Hewitt from prosecution by delaying in filing
the petition.
Most importantly, the Warden has not explained how any
delay in filing by Larsen has prejudiced the State or
benefitted Larsen. In fact, as Larsen’s counsel pointed out at
oral argument, even the Warden’s own argument suggests
that Larsen is in fact innocent: if Larsen delayed filing his
petition to protect Hewitt, then Hewitt (and not Larsen) must

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in fact be the guilty party. None of the Warden’s arguments
in any way diminish the credibility of Larsen’s evidence. For
example, the Warden has not argued that any prosecution
witnesses who testified at Larsen’s trial have since died or
become unavailable. Cf. Perkins, 133 S. Ct. at 1936. In
essence, the Warden’s position amounts to an argument that
delay is a per se indication that Larsen’s evidence is not
credible. That is a close cousin of the argument the State of
Michigan advanced in Perkins that petitioners claiming actual
innocence should be subjected to a “threshold diligence
requirement”—an argument the Supreme Court concluded
“makes scant sense.” Id. at 1935.
In short, delay is relevant if it is “[u]nexplained” or
“unjustified,” id., and if it “bear[s] on the probable reliability
of [the petitioner’s] evidence,” Schlup, 513 U.S. at 332.
Larsen’s alleged “delay” is explained and readily
understandable, and the Warden presents no plausible reason
why his late filing detracts from the credibility of his
witnesses, who have never deviated from their description of
events on June 6 at the Gold Apple bar. The Magistrate
Judge who oversaw the evidentiary hearings in the district
court concluded just the opposite, finding that Larsen’s
consistent and dogged attempts to prove his innocence and
the consistency of his witnesses’ testimony over a period of
years bolstered the reliability of his innocence claim. These
findings are not clearly erroneous, and nothing in Perkins
points to a different conclusion. We thus turn to the question
whether Larsen’s new evidence of innocence is enough to
permit consideration of his federal claim on the merits.

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IV.
A.

To present otherwise time-barred claims in federal court,
a petitioner must produce proof of his innocence that is
sufficient to convince a federal court that a failure to entertain
his claim would constitute a fundamental miscarriage of
justice. Lee, 653 F.3d at 937–38. This “fundamental
miscarriage of justice” doctrine has been described as “a
gateway through which a habeas petitioner must pass to have
his otherwise barred constitutional claim considered on the
merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993).
“To pass through the Schlup gateway, a ‘petitioner must
show that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence.’”
Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 327). “This
exacting standard ‘permits review only in the ‘extraordinary’
case,’ but it ‘does not require absolute certainty about the
petitioner’s guilt or innocence.’ Id. (quoting House, 547 U.S.
at 538). “To be credible, such a claim requires petitioner to
support his allegations of constitutional error with new
reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.” Schlup,
513 U.S. at 324. We have held that “where post-conviction
evidence casts doubt on the conviction by undercutting the
reliability of the proof of guilt, but not by affirmatively
proving innocence, that can be enough to pass through the
Schlup gateway to allow consideration of otherwise barred
claims.” Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir.
2002) (en banc) (citing Carriger v. Stewart, 132 F.3d 463,
478–79 (9th Cir. 1997) (en banc)).

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The Schlup standard “is demanding,” Perkins, 133 S. Ct.
at 1936, and precedents holding that a habeas petitioner
satisfied its strictures have typically involved dramatic new
evidence of innocence. In House, for instance, DNA
evidence established that semen found on a murder victim
came from the victim’s husband and not from House, see
547 U.S. at 540–41, and there was evidence that the husband
had a history of violence toward his wife, raising an inference
that he “could have been the murderer,” id. at 548. In
Carriger, the prosecution’s chief trial witness had confessed
in open court that he himself (and not Carriger) had
committed the murder for which Carriger had been convicted.
See 132 F.3d at 471–72. In contrast, we have denied access
to the Schlup gateway where a petitioner’s evidence of
innocence was merely cumulative or speculative or was
insufficient to overcome otherwise convincing proof of guilt.
See, e.g., Lee, 653 F.3d at 943–46; Sistrunk, 292 F.3d at
675–77. Thus, to satisfy Schlup, the petitioner’s new
evidence must convincingly undermine the State’s case.
However, definitive, affirmative proof of innocence is not
strictly required. As we explained in Carriger, a Schlup
claim “is procedural, not substantive”: a petitioner’s new
evidence must be sufficient to undermine a court’s confidence
in his conviction, but not to erase any possibility of guilt. 132
F.3d at 478.
B.
Larsen has satisfied this demanding standard. None of the
Warden’s arguments can overcome the simple, crucial fact
that Larsen produced witnesses who were never called to
speak on his behalf at his trial and who gave credible
testimony that someone other than Larsen committed the acts
for which he was convicted and sentenced, while Larsen

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stood nearby and did nothing at all, much less a criminal act.
Larsen’s claim of innocence lies at the core of the
“miscarriage of justice” doctrine: it generates “sufficient
doubt about the validity of his conviction to satisfy Schlup
and permit consideration of his constitutional claims.” Id.
We conclude that it is more likely than not that no reasonable
juror hearing all of the evidence Larsen presented in federal
court would vote to convict him under the beyond-areasonable-doubt standard.
The Warden fails to offer any contradictory evidence. He
merely offers several different arguments in a weak attempt
to show that Larsen has not met his burden. First, he claims
that the Magistrate Judge misapplied the applicable legal
standards by resting her recommendation on her own
subjective lack of confidence in the verdict, rather than an
objective determination of what a reasonable jury would do
given the newly supplanted record. In Schlup, the Supreme
Court observed that “[i]t is not the district court’s
independent judgment as to whether reasonable doubt exists
that the standard addresses; rather the standard requires the
district court to make a probabilistic determination about
what reasonable, properly instructed jurors would do.”
513 U.S. at 329. However, the Magistrate Judge made an
objective determination when she concluded that, “had the
jury been able to consider” the evidence presented at the
evidentiary hearing, “‘no reasonable juror would have found
Petitioner guilty beyond a reasonable doubt.”
That the Magistrate Judge also referenced her own lack of
confidence in the verdict does not render her analysis legally
erroneous. Indeed, this same language has been employed
both by the Supreme Court and by us in describing the Schlup
standard. See, e.g., Schlup, 513 U.S. at 316 (“However, if a

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petitioner such as Schlup presents evidence of innocence so
strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial was free
of nonharmless constitutional error, the petitioner should be
allowed to pass through the gateway and argue the merits of
his underlying claims.” (emphasis added)); accord Majoy v.
Roe, 296 F.3d 770, 775–76 (9th Cir. 2002). This “confidence
in the outcome” formulation is simply another way of
describing Schlup’s “no reasonable juror” standard, and one
that courts have used for decades. Certainly, it was not
reversible error for the district court to employ language that
has been endorsed both by the Supreme Court and by our
court.
Next, the Warden argues that Larsen has failed to satisfy
Schlup because nothing in the evidentiary hearing testimony
is incompatible with his conviction. This argument by the
Warden appears to have evolved over the life of his appeal.
In his opening brief, the Warden argued that the McNutts
may have been relating a completely separate incident from
that discussed by the police officers in their trial testimony.
For instance, while the McNutts testified that the events they
witnessed occurred around 7:30 or 8:00 p.m., Officer Rex
testified at trial that Larsen was arrested at 12:30 a.m. The
Warden contends that it “strains credulity” to think that a
middle-aged couple would meet their adult son at a bar that
late at night. Coupled with the fact that the McNutts did not
recall seeing flood lights or helicopters, the Warden contends,
the McNutts’ testimony about the time suggests that they may
not have been present at all for the events in question.
It is the Warden’s argument here that “strains credulity.”
Both McNutts testified that while they were at the Gold
Apple bar, they witnessed an altercation in the parking lot,

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that numerous police officers thereafter arrived on the scene,
that someone threw a metallic object under a nearby car, and
that Daniel Larsen was placed in the back of a patrol car. For
the McNutts to have witnessed a separate incident, all of
these occurrences would have had to repeat themselves within
a period of a few hours at the same exact location; indeed,
this version of events would require Larsen to have been
arrested twice on the same day at the same bar. It is far more
likely that the McNutts witnessed the same incident discussed
at Larsen’s trial. Both McNutts expressed uncertainty about
the time of night in their testimony, and did not purport to be
definitive about the time of the incident. Similarly, they
stated that they did not recall hearing helicopters or seeing
floodlights, but as the Magistrate Judge noted, that “[t]he
McNutts, eleven years later, did not remember what lights
they saw or what sirens they heard” constituted “minor
discrepancies that do not cast doubt on the McNutts’ clear
and consistent memories of seeing Bunker, not Petitioner,
throw the object.”
In his post-Perkins supplemental brief, the Warden argued
that the evidentiary hearing testimony is not inconsistent with
Larsen’s conviction because none of his witnesses actually
testified that they saw Hewitt throw a knife. It is true that
while both McNutts testified that Hewitt threw a metallic
object under a car in the parking lot, neither testified with
certainty that the object was a knife. However, both McNutts
testified that Larsen had nothing in his hands and did not
throw any object, while Hewitt did throw an object that Mr.
McNutt specifically said could not have been a copper
weight—the only other object found in the parking lot that
night. The Warden further points to Mrs. McNutt’s
admission that she “looked at every direction, like what was
going on,” when the police arrived at the scene, and argues

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that a reasonable juror could have inferred that Mr. McNutt
was probably not paying much attention to Larsen during the
commotion. But that it may have been physically possible for
Larsen to throw a knife during a split second when neither of
the McNutts was paying attention does not defeat Larsen’s
Schlup claim. Rather, that multiple credible witnesses saw a
different person take the same actions that Larsen was
accused of taking—throwing a metallic object under a nearby
car—suggests that the police were mistaken about the identity
of the person who threw the knife. No reasonable juror
confronted with such evidence would be convinced beyond
a reasonable doubt of Larsen’s guilt.7
The Warden also argues that McCracken’s admission that
he was previously convicted of felonies would have
undermined his credibility in the eyes of the jury, especially
in comparison to the police officers who testified for the
prosecution. Even assuming that McCracken’s convictions
suggest that he is generally dishonest, the testimony of
individuals who have been convicted of felony offenses is not
always to be disbelieved. McCracken’s testimony is to be
viewed not only in light of the contradictory testimony of the
police offers, but also in light of the clear testimony of the

7

The Warden also argues that the McNutts may have been biased, either
against the LAPD (because of certain officers’ alleged mistreatment of the
McNutts at the scene) or against Hewitt (whom they testified was acting
in a hostile manner toward their son). But as the Magistrate Judge found,
a reasonable juror would be much more likely to conclude that a former
law enforcement official and military veteran and a woman with
degenerative health problems would not spend a decade consistently
providing exculpatory testimony on behalf of someone with whom they
lacked any meaningful personal ties, culminating with a cross-country trip
to testify at the evidentiary hearing, in order to retaliate against Bunker or
the LAPD for a decade-old slight.

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McNutts and, to a lesser extent, the declarations of Jorji
Owen and William Hewitt. Moreover, the Warden does not
offer any reason why McCracken would risk criminal
consequences by perjuring himself for Larsen’s benefit.
Indeed, McCracken gave uncontradicted testimony that he
was not a close friend of Larsen’s.
The Warden also argues that “none of the evidence
presented at the federal evidentiary hearing adequately
accounts for the fact that Petitioner, when arrested at the
scene, gave the police a false name.” But beyond a
perfunctory reference to the notion that “a truly innocent man
would have had no reason to lie to police about his identity,”
the Warden does not explain why this false statement
undermines any of the newly presented evidence of innocence
adduced at the evidentiary hearing. Even if Larsen’s use of
a pseudonym suggests consciousness of guilt in some general
sense, it cannot independently support a finding of guilt
beyond a reasonable doubt for the specific crime of which
Larsen was convicted. Moreover, it is undisputed that Larsen
had prior convictions, and he may have had any number of
reasons to try to avoid providing his true identity to the
police. These might include averting arrest for a crime he did
not commit.
Finally, the Warden argues that none of Larsen’s new
evidence undermines the trial testimony of Officers Rex and
Townsend, who identified Larsen as the man who threw the
knife. However, despite the Warden’s repeated arguments
that a “swearing match” between prosecution and defense
witnesses is insufficient to satisfy Schlup, it never
meaningfully explains how a jury faced with evidence from
five different witnesses that a different person threw the knife
could nonetheless have concluded that Larsen was guilty

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beyond a reasonable doubt. If the fact that prosecution
witnesses testified against the defendant at trial were
sufficient to defeat any actual innocence claim, the Schlup
doctrine would be meaningless.
Indeed, Schlup itself is to the contrary. In that case, two
corrections officers, Flowers and Maylee, testified that
Schlup was involved in a jailhouse murder. See Schlup,
513 U.S. at 302 (“The State produced no physical evidence
connecting Schlup to the killing, and no witness other than
Flowers and Maylee testified to Schlup’s involvement in the
murder.”). Like Larsen’s, “Schlup’s defense was that the
State had the wrong man.” Id. at 303. The district court had
“concluded that the affidavits presented by Schlup,” in which
prisoners who had witnessed the crime contradicted the
officers, “when considered against the positive identifications
made by Flowers and Maylee, failed to constitute a
sufficiently persuasive showing of actual innocence.” Id. at
309 n.19. The Supreme Court disagreed and remanded for
further proceedings, expressly holding that a “petitioner’s
showing of innocence is not insufficient solely because the
trial record contained sufficient evidence to support the jury’s
verdict.” Id. at 331. Likewise, Larsen’s “post-conviction
evidence casts doubt on the conviction by undercutting the
reliability of the proof of guilt,” even if it does not
“affirmatively prov[e] innocence”; “that can be enough to
pass through the Schlup gateway to allow consideration of
otherwise barred claims.” Sistrunk, 292 F.3d at 673.
Larsen’s evidence more than suffices.
The district court already held that Larsen’s conviction is
constitutionally untenable because he received ineffective
assistance of counsel at trial, and the Warden has not
appealed that ruling. Rather, the Warden has argued only that

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Larsen’s habeas petition should not have been considered at
all because it was untimely. Because we hold otherwise,
Larsen is entitled to the writ of habeas corpus entered by the
district court.
V.
When a state prisoner challenges his conviction in federal
court, we must be “careful to limit the scope of federal
intrusion into state criminal adjudications and to safeguard
the States’ interest in the integrity of their criminal and
collateral proceedings.” Williams v. Taylor, 529 U.S. 420,
436 (2000). Congress passed AEDPA, including its stringent
statute-of-limitations provision, to “further [these] principles
of comity, finality, and federalism.” Id.
However, as the Supreme Court has repeatedly
recognized, “in appropriate cases [these] principles of comity
and finality . . . must yield to the imperative of correcting a
fundamentally unjust incarceration.” Murray v. Carrier,
477 U.S. 478, 495 (1986) (internal quotation marks omitted).
This is such a case. Because we conclude that Larsen has met
the demanding Schlup standard, we must exercise the
“‘equitable discretion’ of habeas courts to see that federal
constitutional errors do not result in the incarceration of
innocent persons.” Herrera, 506 U.S. at 404 (quoting
McCleskey, 499 U.S. at 502).
AFFIRMED.

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